Recall handed to judge

It’s now up to Judge Vickie Churchill to decide the fate of recall petitions filed against North Whidbey Park and Recreation Commissioners Brien Lillquist and Janet Sabalausky.

The Island County Superior Court judge heard about two hours of arguments from opposing attorneys during a hearing on the petitions Tuesday morning. About 20 citizens showed up in support of the petitions, which were submitted by Friends of the Pool members Tom Johnson, Grace Horn and Park and Rec Commissioner Harvey Prosser.

At the end of the arguments, Churchill explained that she needed to read through all the paperwork, much of which was submitted moments before the hearing, and then make a decision. She said she will either set a date for a hearing or issue a written opinion.

Johnson said afterward that he was “optimistic” about the outcome. Lillquist simply said he’s “in limbo” about the decision and isn’t sure what will happen.

In making her decision, Churchill must decide if the charges against the commissioners are factually and legally sufficient to constitute malfeasance, misfeasance, violation of the oath of office or violation of the law.

Sabalausky was absent from the hearing and hadn’t signed a declaration in her own defense, which means it couldn’t be submitted to the judge. Yet Mark Theune of Oak Harbor, the attorney representing Sabalausky and Lillquist, was able to argue in her defense during the hearing.

The only issue Churchill questioned the attorneys about after their presentations is the fine distinction between “the factual basis of the charges” versus “the truth of the charges.”

Under the law governing recalls, Churchill explained, she isn’t supposed to look at the truth of the charges, but she can decide if there is a factual basis within the language of the charges. The petitioners’ attorney, Joe Broadbent of Seattle, argued that Theune’s entire defense was based on questioning the truth, while Theune claimed he was showing that there is no factual basis for the charges.

Theune and Broadbent went through each of the charges against the two commissioners and explained the circumstances.

The most detailed charge against the commissioners has to do with the board’s 4-1 vote at a March 18 meeting to allocate $20,000 to the Boys and Girls Club for a summer recreation program. Broadbent said the motion and vote violated state law, which prohibits a government entity from “gifting” money to a private group. He added that Commissioner Prosser pointed out to the board that the vote may violate law, but the other members refused to revisit the issue.

Theune, however, argued that it’s perfectly legal for the board to contract for services with an outside agency. “They did not intent to gift money to anyone,” he said. “They intended to enter into a relationship with the Boys and Girls Club.”

One of Theune’s main lines of defense against the charges was that Lillquist and Sabalausky did not break the laws or rules on purpose. “They have to show with specific facts,” he said, “that the officials intended to violate the law.”

The first charge against the two commissioners, for example, claims that they illegally tried to sell the district’s “Hillcrest property” without a unanimous vote of the commissioners, which is required by law. Theune said the commissioners weren’t aware of the specifics of the law when they made the vote.

Also, he pointed out that three commissioners voted in favor of the sale, one commissioner abstained, and one was absent. He said they could reasonably assume that this was a unanimous vote.

Broadbent, however, argued that ignorance of the law is no excuse and that the officials’ intentions have to be assumed when they break the law. “You’re never going to have admissions from elected officials that they intended to violate the law,” he said.

Other charges claim Lillquist and Sabalausky committed misfeasance by cutting the director’s spending authority from $50,000 to $1,000 without amending the bylaws. Because of this, other charges allege that the director was unable to fix the heat in the locker room for several months.

Theune said the petitioners simply misread the commissioners’ actions, which did not cut spending authority. Moreover, he said neither the director nor the maintenance person advised the commissioners of the problem with the heating.

Broadbent pointed out, on the other hand, that the commissioners “have the ultimate duty to repair and maintain the facility.”

Another charge claims that the board sent a letter to Commissioner T.J. Harmon asking her to resign because she had missed more than half the meetings. Broadbent said the board violating the Open Public Meetings Act by sending the letter without first discussing it in public.

Theune questioned whether the letter exists and pointed out that the charge is very vague about who wrote the letter and when it was sent.

Several charges also claim that Sabalausky violated the Open Public Meetings Act several times by requesting improper executive (closed door) sessions. Theune, however, pointed out that only the chairman can call executive sessions and Prosser himself was the chairman when the allegedly illegal meetings occurred.

If Churchill upholds any of the charges against Lillquist and Sabalausky, the petitioners would still have to gather about 1,400 signatures for each commissioner to get them onto the ballot.

You can reach News-Times reporter Jessie Stensland at or call 675-6611.

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